Appendix "C"

AI.    Introduction

Full Text

CI.    Consultation process

CI.1    The College invited the public and the profession to provide feedback on the policy by regular mail, email, and an on-line survey.  In addition, it provided an On-line Poll and Discussion Forum.  The prompt for the On-line Poll, Discussion Forum and submissions was:

Do you think a physician should be allowed to refuse to provide a patient with a treatment or procedure because it conflicts with the physician’s religious or moral beliefs?  (Yes) (No) (Don't Know)

CII.    Results1

CII.1    ON-LINE POLL

CII.1.1    Respondents on the discussion page noted marked changes in voting patterns suggestive of technological manipulation of the poll by both "yes" and "no" respondents, and that some had difficulty registering their votes (179, 183, 197).  There seems to have been no geographical limitation on responses.  Thus, while the results seem to indicate overwhelming support for freedom of conscience among physicians, the value of the poll is doubtful except as a general indicator of interest in the subject and general trend among respondents. 

CII.1.2    In fairness to the College, this kind of poll seems to be used on other websites primarily to increase traffic and readership rather than as a reliable source of data, and it probably did serve that purpose in the consultation.

CII.2    DISCUSSION FORUM (EMAIL, REGULAR MAIL, FORUM PARTICIPANTS)

CII.2.1    The Discussion Forum included numbered entries by forum participants directed to the College concerning the policy, as well as numbered entries with submissions received by the College through email and regular mail.  In addition, forum participants posted replies and exchanged views in discussions under individual numbered responses.  Entries in these exchanges were not numbered.

CII.2.2    The College states that it received 1,797 responses, but there are only 1,270 numbered entries on the discussion page.  The difference (+527) is accounted for by the replies and exchanges under the numbered entries.2

CII.2.3    The present analysis concerns only the 1,270 numbered entries directed to the College concerning the policy, which include 1,719 responses.3

Figure 1.

Figure 2.

Figure 3.

Figure 4.

Figure 5.

Figure 6.

CII.3    ON-LINE SURVEY

CII.3.1    The following information is taken from a Report provided by the College analyzing the results of the On-line Survey.

CII.3.2    Of the 6,400 surveys started, 3,103 were completed and 1,311 completed at least one substantive question.  The report concerns these 4,414 completed or partially completed surveys, 26 of which came from organizations.  Note that at least some of those who completed or partially completed a survey also responded through the discussion page above, but these respondents have not been identified by the College.

Figure 7.

Clarity and Comprehensiveness

CII.3.3    The Report states that 54% of the respondents stated that Physicians and the Human Rights Code clearly articulated a physician's professional obligations, 55% thought it easy to understand, 57% thought it well written, and most (58%) considered it well organized.

CII.3.4    However, it also notes that almost 27% had not read the policy, while the percentages above refer to the total number of responses, not to the 73% who had actually read it.

CII.3.5    More confusing, the Report indicates that its analysis of comments on the comprehensiveness of the policy is based on 3,300 responses, again, without reference to whether or not the respondents had actually read the policy.

CII.3.6    It may be possible for the College to review the survey returns and limit the analysis of clarity and comprehensiveness of the policy to the respondents who actually read it.  Unless that is done,  its analysis under this head will remain unsatisfactory.

Policy Issues

CII.3.7    The following charts are derived from Figure 3 of the Report.  The percentages refer to a total of 3,117 responses.  The charts are arranged in diminishing order of agreement (i.e., either strongly or somewhat agree), agreement indicated by dark blue shading.  Bear in mind that most of the responses are from the general public, so the charts do not represent the opinions of physicians.

Figure 8.

Figure 9.

CII.3.8   The subject of referral was handled differently.  Respondents were asked the following question:

 When physicians refuse to provide treatments or procedures on the basis of moral or religious belief, do you think those physicians must be required, in all instances, to refer patients to another physician or health care provider who will provide the treatment or procedure?
(Yes) (No) (Don't know)

CII.3.9    The following chart is derived from Figure 4 in the Report, which is based on 3,104 responses to this question.

Figure 10.8

CII.3.10    1,762 respondents provided further feedback on this question.  Presumably, the five examples of the feedback provided in the Report are representative of all of the feedback.

1. It seems criminal that a physician should be allowed to bill the health care system for a visit from an existing or potential patient and not at least provide them with a referral elsewhere;
2. Referring a patient to another doctor is in some way collaborating with or enabling a procedure the physician may consider immoral, and is in some circumstances equivalent to murder;
3. The physician can direct the patient to a directory of physicians to find a new doctor. The physician who is morally/religiously conflicted does not have to make a direct referral (doctor to doctor);
4. They have no right to deny treatment. If they feel strongly about their religious rights they need to find a different profession that would make them more comfortable.; and
5. If it is not an emergency situation, a physician should not be required to provide information on where to obtain a procedure they are morally opposed to. Patients are able to find that information themselves if they so desire.

CIII.    Discussion

CIV.1    General Remarks

CIV.1.1    An unknown number of respondents contributed through more than one of the consultation feedback portals (On-line Poll, On-line Survey, Discussion Forum, email, regular mail) and the College has not (and perhaps cannot) identify them.  For this reason, it is not possible to derive from the totality of consultation feedback a single, accurate global number of responses in any of the six categories used in this analysis.

CIV.1.2    For present purposes, the On-line Poll is discounted because it is of doubtful value (see above).  Further, the Report's analysis of the clarity and comprehensiveness of the existing policy is also discounted because it is unsatisfactory (see above).  Hence, this discussion is limited to the 1,719 responses/submissions in the discussion forum and to the Report's analysis of between 1,762 and 3,117 On-line Survey responses about policy issues.

CIV.1.3    A further point to note is that the College stated that the volume of responses was unprecedented - more than 6,700.9  According to the briefing note for College Council, there were 6,710 responses, including "2296 comments posted to the online discussion page and 4414 completed online surveys."10

CIV.1.4    In fact, there were 3,103 complete and 1,311 partially completed surveys, not 4,414 completed surveys.11 Moreover, since an unknown number of respondents contributed both to the On-line Survey and Discussion Forum, the number of unduplicated consultation responses actually available for analysis may have been far less than 6,700.  On the extremely contentious issue of referral, for example,  the College's analysis relies on less than half that number (Figure 13). 

CIV.2    Discussion Forum Responses (Email, regular mail, forum participants)

CIV.2.1    The comments posted in the Discussion Forum were unstructured responses to the prompt:

Do you think a physician should be allowed to refuse to provide a patient with a treatment or procedure because it conflicts with the physician’s religious or moral beliefs?

CIV.2.2    Almost 80% of respondents in the Discussion Forum (including 68% of health care practitioners, half of the medical organizations and 77% of other organiztions) indicated their support for physician freedom of conscience by affirming that they should be able to decline to provide services for reasons of conscience or religion (Table C, Figure 1).  However, in many cases, this was explicitly qualified by statements to the effect that this referred to non-emergency situations, sometimes more specifically identified as situations in which failing to provide the service would not endanger the life of the patient.

CIV.2.3    About 11% of respondents indicated that they were against physician freedom of conscience by affirming that they should not be able to refuse services for reasons of conscience or religion (Table C, Figure 1).  This included 14% of health care practitioners and 13% of other organizations (Table D, Figure 2, Figure 4).

CIV.2.4   Only about 2% of respondents volunteered that objecting physicians should be required to refer a patient to a colleague who would provide the service (Table C, Figure 1).  In a number of cases it appears that the respondents did not appreciate that referral involved a moral or ethical issue, and might not have made the recommendation if they had.  In others, it appears that the respondents would not have altered their view even if they understood that a moral or ethical issue was involved.  Only 4% of responding health care practitioners insisted upon referral (Table D, Figure 2).

CIV.2.5    Summary:    The overwhelming majority of respondents who made submissions through email or regular mail or as discussion forum participants support freedom of conscience for physicians with respect to refusing to provide non-emergency services.  In contrast, they offer virtually no support for a policy of mandatory referral by objecting physicians.

CIV.3    On-line Survey: Policy Issues (re: policy statements)

CIV.3.1    It is instructive to arrange the policy statements in the On-line Survey in order of the level of overall agreement expressed with each (Figures 5 to 10). 

CIV.3.2    With two exceptions, the reduction in the level of overall agreement corresponds to a reduction in the number of those who "strongly agree," but there is no corresponding increase in the overall level of disagreement.  Instead, the overall level of agreement falls because more respondents seem to be in doubt about how to interpret or apply the statements, reporting that they "neither agree nor disagree" rather than that they "disagree" or "don't know." (Figure 11, Figure 12)

CIV.3.3    Two explanations can account for disagreement or doubt.  First: the policy statement may be perceived as excessively rigid, insufficiently attuned to the realities of practice.  Second: complying with a statement may be perceived to involve complicity in a morally contested procedure.

CIV.3.4    These explanations are likely to be overlooked or dismissed as irrelevant by those bent on enforcing physician compliance with establishment expectations, but it is appropriate to consider them from the perspective of protecting the legitimate exercise of freedom of conscience.  Explanations follow the references to the policy statements below.

Communicate clearly and promptly: The physician must communicate clearly and promptly to their patient about any treatments or procedures they choose not to provide because of the physician’s moral or religious beliefs.

CIV.3.5    It is common ground that conflicts should be avoided - especially in circumstances of elevated tension - and that they often can be avoided by timely notification of patients, erring on the side of sooner rather than later.  Thus, the high level of support for this statement (Figure 5) is not surprising.  Nonetheless, some doubt or disagreement about it might be attributed to concern about excessive rigidity.  Respondents who did not express support for this statement could have had two scenarios in mind.

CIV.3.6    First: it is unreasonable to expect physicians to anticipate, in advance, every conceivable request that might be made by patients.  For example: it would probably be unnecessary for a physician who accepts a 55 year old single woman as a patient to begin their professional relationship by disclosing objections to abortion, and it could well be unsettling for the patient if her medical history includes abortion. And, while it is possible that the woman might, six months after being accepted as a patient, ask for an embryo transplant, it does not follow that the mere possibility of such a request imposes a duty on the physician to disclose moral objections to artificial reproduction at their first consultation.

CIV.3.7    Second: a physician may decline to provide a procedure for medical reasons that are acceptable to his colleagues, but may also have religious or moral reasons for refusal.  In such situations, the physician might believe that it is sufficient to advise the patient only of his medical reasons because his decision does not not engage his moral or religious beliefs.

Tell patients they can see another doctor:The physician must advise patients, or individuals who wish to become patients, that they can see another physician with whom they can discuss their situation if the treatment conflicts with the physician’s moral or religious beliefs

CIV.3.8    76% of survey respondents agreed with this statement, while disagreement and doubt ("neither agree nor disagree") were almost equal: 11% and 12% respectively (Figure 6).

CIV.3.9    The somewhat lower level of support for this statement might be attributed to belief by some respondents that one becomes complicit in a morally contested procedure merely advising a patient of his right to see another physician.  Members of the general public comprised almost 75% of the survey participants (Table E), so disagreement or doubt may reflect popular rather than professional views.  In fact, the Project has not encountered an objecting physician who would refuse to advise patients that they can see a colleague. 

Not express personal judgements:Physicians should not express personal judgments about the beliefs, lifestyle, identity or characteristics of a patient or an individual who wishes to become a patient.

CIV.3.10    A clear majority of respondents support the idea that physicians must not "express personal judgments" about the beliefs, lifestyle identity or personal characteristics of patients.  The level of agreement drops to 71%, and the level of doubt is about the same, but here we encounter the first exception to the general trend.  In this case, the level of disagreement rises from 11% to 17%  (Figure 7).  Disagreement and doubt on this point are probably attributable to concern about excessive rigidity, for two reasons.

CIV.3.11    First: many conditions treated by physicians are the result of patient choices about diet and exercise, the use of alcohol, tobacco and illicit drugs and other risk-taking behaviours: sometimes, even, of criminal misconduct.  Most people would agree that physicians are entitled to express judgements about patient choices that are relevant to health.  However, such judgements involve a degree of subjective evaluation, and patients may not appreciate the distinction between a "personal" and a "professional" judgement.  This is further complicated for physicians whose religious beliefs conflict with patient choices, as when a religion proscribes the use of alcohol and/or tobacco.  Will they be accused of violating this guideline, even if their advice is based on the same reasoning and couched in the same terms as that of a colleague who does not share their beliefs?

CIV.3.12    Second: there may be concern that ideologues will treat bona fide compliance with the first policy statement (communicate clearly and promptly) as a violation of this guideline.  After all,  a physician cannot express a conscientious objection without first forming the judgement that the treatment is immoral. It is reasonable to believe that the communication of the objection, which the College requires, will cause patients to infer (correctly) the beliefs of the physician concerning the treatment. Patients may thus "feel judged" by the physician, even if the physician's judgement pertains to the morality of the procedure rather than the personal culpability of the patient.  It would be unjust to require physicians to disclose conscientious objections to patients and then discipline them because a patient resents their beliefs, but this possiblity might well explain why more respondents disagreed with this policy statement.

Not promote own beliefs:  Physicians must not promote their own moral or religious beliefs when interacting with patients.

CIV.3.13    We encounter the second exception to the general trend in the case of the policy against promoting one's own beliefs.  The level of agreement drops to 61%, the level of disagreement rises to 23% and doubt increases to 15% (Figure 8).  Once more, the most likely explanation for this is that the policy is perceived to be excessively rigid and fails to take into account the realities of practice.

CIV.3.14    That reality includes the fact that, if a physician communicates an objection to a procedure or service (as required by the first guideline), a patient may well challenge his objection.  A physician may, quite reasonably, provide further explanation or justification in subsequent conversation - and later get a letter from the College advising him that the patient has complained that he was "promoting his own beliefs." On the other hand, if he fails to respond to the patient's challenge, the patient may concude that he is acting arbitrarily, has something to hide, or is unable to defend his position.

CIV.3.15    It is not surpising to find less support for a policy that may be perceived to contribute to this kind of no-win scenario.

Provide information on all clinical options:The physician must provide information about all clinical options that may be available or appropriate based on the patient’s medical needs or concerns, even if the treatment options conflict with the physician’s moral or religious beliefs.

CIV.3.16    The requirement that physicians provide information about all clinical options enjoys the same level of overall agreement as the preceding statement (61%), but the level of disagreement falls to 9% and number of responses indicative of doubt increases to 23% (Figure 9).

CIV.3.17    Here, the lower level of overall support and much higher level of doubt are most likely explained by concern about complicity.

CIV.3.18    Those who object to X for reasons of conscience may hold that "merely" providing information is not necessarily a morally or ethically neutral act: that providing information can make one complicit in morally contested procedures.  This position is neither unique nor unreasonable.  In fact, it is held by the General Medical Council of the United Kingdom,12 and the American Medical Association.13  It was formerly the position of the College of Physicians and Surgeons of BC.14 (See also the comment of the Catholic Archbishop of Toronto, below.)

CIV.3.19    The possiblity that euthanasia and assisted suicide may be legalized by the Supreme Court may also have influenced responses.  Physicians who believe that physicians should never be involved in killing patients because patients are especially vulnerable to abuse may also believe that, in the absence of a patient request, even advising patients of the option of assisted suicide or euthanasia is an intrinsically abusive act.

Sometimes help to find another doctor:In some circumstances, the physician must help the patient or individual make arrangements to see another physician with who they can discuss their situation if the treatment conflicts with the physician’s moral or religious beliefs.

CIV.3.20    As noted above, the possibility of the legalization of assisted suicide and euthanasia may also have influenced responses under this head. An expectation that an objecting physician must sometimes help a patient find a colleague "with whom they can discuss their situation" does not necessarily amount to a requirement to help the patient obtain a morally contested service, which many objecting physicians would find unacceptable because they believe it would make them complicit in the act.  However, it is uncomfortably close to that.  The Catholic Archbishop of Toronto made this point in his submission:

The second expectation "Provide information about all clinical options . . . " and the fourth "Advise patients or individuals . .. " could have the potential for an infringement upon the rights of conscience of a physician, depending on the extent to which he or she is required to become actively involved in facilitating actions which go against his or her  conscience. A lot depends on what is involved in "help the patient or individual make arrangements to do so."15

CIV.3.21    Hence, it is not surprising that the level of agreement in this case drops to 55%, the level of "strong agreement" drops dramatically to 39%, the level of disagreement is double that of the preceding guideline, and the level of doubt rises to 26% (Figure 10). 

CIV.3.22    Summary:  Levels of support for policy statements related to freedom of conscience for physicians decrease when they are perceived as excessively rigid or insufficiently attuned to the realities of practice.  Levels of support fall and disagreement and doubt increase when they are perceived to require complicity in morally contested procedures.  On-line Survey responses under this head do not support a policy of mandatory referral, suggesting, instead, that such a policy is controversial.

CIV.4    On-line Survey: Policy Issues (re: mandatory referral)

CIV.4.1    With respect to a policy of mandatory referral, the change from requests for levels of agreement with a policy statement to a "Yes-No-Don't Know" response prevents comparison with responses to the preceding policy statements.  However, the concern here more clearly being the perennially contentious issue of coerced complicity in morally contested procedures, it is not surprising to find that the level of agreement drops further to 50% and disagreement rises dramatically to 43% (Figure 13).

CIV.4.2    Moreover, the sample of comments provided in the Report indicate that the expressed levels of agreement and disagreement are somewhat unstable, depending on factors or nuances not captured by the survey question.

CIV.4.3    Of the five comments, two (Comment 2 and Comment 5) appear to be taken from the "disagree with mandatory referral" category, but Comment 5 disagrees only in non-emergency situations.

CIV.4.4    Two seem to come from the "agree with mandatory referral" category, but only one (Comment 4) clearly favours coerced participation.  The respondent who offered Comment 1 seems unaware that physicians who do not provide a service cannot bill for it, and that prudent objecting physicians may not bill for a consultation that ends in refusal. 

CIV.4.5    Comment 3 could have come from any of the three categories.  It reflects some of the ambiguity associated with the term "referral", and reflects a solution that, in the Project's experience, most objecting physicians seem willing to accept. 

CIV.4.6    Summary:  On-line Survey responses do not support a policy of mandatory referral.  Rather, they indicate that mandatory referral is a highly controversial subject.

Notes

1. This analysis uses spreadsheets in an Excel file, a copy of which is available here. 

2.  Email from College of Physicians and Surgeons of Ontario (humanrights@cpso.on.ca) to the Project Administrator, 9 February, 2015, 3:55 PM

3.  Two of the numbered entries appear to be duplicates from the same respondents (42-43, 70-71) and three are from the same organization (1094,1263,1265).  In this analysis, the duplicate and triplicate entries are not counted.  In some cases (eg., 526) the College noted that it had received X number of identical responses, but posted only one to represent the group.  In this analysis, the actual number of responses under a single entry is counted.  In other cases, the single entry included either a joint submission by more than one organization (1252) or represented the views of more than one person (1035).  In this analysis, the actual number of persons/groups represented by an entry is counted, which is consistent with the approach taken with respect to multiple identical submissions under a single entry.

4.  Among health care workers, the College identified only physicians (active and retired), categorizing nurses, pharmacists, etc. as members of the public.  In this analysis, all active and retired physicians and medical students and health care workers are grouped as health care practitioners, based on self-identification by the respondents in the text of their submissions.

5.  The College did not distinguish professional medical organizations from other organizations.  This analysis makes that distinction.

6.  Categorizing responses may sometimes involve subjective interpretation.  In some cases, a different analyst might assign a response to a different category.  It is doubtful that this variation would significantly change the numbers reported in each category.

7.  Compulsory referral is considered by many objectors to be a denial of freedom of conscience.  Some respondents who expect referral appear not to recognize that and consider their expectation to be consistent with freedom of conscience.  Others appear either to reject the idea that any moral or ethical issue is involved in referral, or insist that the physicians view must be suppressed in favour of the patient.  Rather than attempt a subjective evaluation to distinguish these views as either for or against freedom of conscience, all responses  in the form, "if will not provide, must refer" are grouped together. 

8.  Figure 4 reported "Don't know" as 8%, which would add up to 101%.  It is reduced to 7% here to facilitate charting.  Physicians and the Ontario Human Rights Code Consultation, Online Survey Report and Analysis.

9.  "Balancing MD and patient rights: Human rights draft policy open for consultation."  Dialogue, Vol. 10, Issue 4, 2014, p. 49.  (Accessed 2015-01-30)

10.  College of Physicians and Surgeons of Ontario, Council Briefing Note: Professional Obligations and Human Rights - Draft for Consultation (For Decision) (December, 2014).  In Annual Meeting of Council, December 4-5, 2014, p. 328 (Accessed 2015-02-03)

11.  Physicians and the Ontario Human Rights Code Consultation, Online Survey Report and Analysis, Table 1.

12.  The GMC acted on this principle when it disciplined a physician who provided information about the sale of organs but did not actually engage in the practice. The Council found that the doctor had not participated in the organ trade, but that his conduct amounted to "encouragement of the trade in human organs from live donors". BBC News, "Organ trade GP suspended." 15 October, 2002 (Accessed 2015-02-01)

It has also applied this principle in guidance on assisted suicide.  Among the kinds of conduct that may constitute illicit facilitation or cooperation in assisted suicide, the GMC includes: "encouraging a person to commit suicide, for example, by suggesting it (whether prompted or unprompted) as a 'treatment' option . . .providing practical assistance, for example, by helping a person who wishes to commit suicide to travel to the place where they will be assisted to do so . . . writing reports, knowing or having reason to suspect that the . . . reports would be used to enable the person to obtain encouragement or assistance in committing suicide. . . providing information or advice about other sources of information about assisted suicide, and what each method involves from a medical perspective . . ." General Medical Council, Guidance for the Investigation Committee and case examiners when considering allegations about a doctor's involvement in encouraging or assisting suicide: a draft for consultation. (Accessed 2015-02-01)

13.  The AMA prohibits physicians from rendering technical advice or consulting with executioners or "providing . . .knowledge to facilitate the practice of torture." American Medical Association Policy E-2.06: Capital Punishment (June, 1998) (Accessed 2015-02-01); American Medical Association Policy E.2.067: Torture. (Accessed 2015-02-01)

14.  The Deputy Registrar of the College of Physicians and Surgeons of British Columbia (CPSBC)was horrified in August, 2005, when he learned that a pre-natal gender testing kit was being marketed on the internet. He described gender selection as "immoral." He explained that College policy was not to disclose the sex of a baby until after 24 weeks gestation in order to reduce the risk of gender selection, and that physicians violating the policy were liable to be disciplined by the College.  Clearly, in this case, "providing information" (about the sex of the baby) was not considered an ethically or morally "neutral" act.  Lee, Jenny, "Official slams 'sex selection' blood test: Gender of fetus can be seen five weeks into pregnancy." Vancouver Sun, 13 August, 2005. (Accessed 2005-10-10).  See also College of Physicians and Surgeons of British Columbia, Resource Manual, Fetal Sex Selection Solely for Gender Determination (May, 2010).  The CPSBC revised the policy in January, 2012, apparently because of a legal requirement to disclose information to patients. (College of Physicians and Surgeons of British Columbia, Professional Standards and Guidelines, Disclosure of Fetal Sex. (January, 2012) Accessed 2015-02-02.

15.  Collins, T.  Letter to the College of Physicians and Surgeons of Ontario, 5 August, 2014.  Discussion Forum entry 1171 (Accessed 2015-01-23)

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